9911796707
TMI Blog2005 (7) TMI 535X X X X Extracts X X X X X X X X Extracts X X X X ..... arises out of the order dated 29-4-1997 of the Commissioner of Central Excise by which he has :- (a) confirmed duty demand of Rs. 2,64,849.68 on illicit clearances of 9387 rigid PVC pipes, (b) confirmed duty demand of Rs. 7,20,502/- on 60,300 kgs of PVC resins and 3,050 kgs calcium carbonate (inputs/raw materials) found short during search; (c) confirmed duty demand of Rs. 1,27,643.68 on illicit clearance of PVC pipes as per Annexure C to the show cause notice; (d) confirmed demand of Rs. 19,60,001.93 on illicit clearance of PVC pipes as per Annexure D to the show cause notice; (e) confiscated seized quantity of 2,094 rigid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent inputs with option to redeem them on payment of a fine of Rs. 1,500/-; (g) confiscated land/building/plant/machinery with option of redemption on payment of a fine of Rs. 1 lakh; (h) imposed penalty of Rs. 20 lakhs under Rule 173Q(1) of the Central Excise Rules on the manufacturer, and (i) imposed penalty of Rs. 1 lakh under Rule 209A of the Central Excise Rules on its General Manger. 4. We have heard both sides and record our findings as under. 5. Demand on finished goods found short on stock verification is sustainable in view of the admission of such shortage by Shri Nambiar. The contention of M/s. Plastotex (Bombay) Pvt. Ltd. that stock of some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... already debited the amounts and therefore the proposal in the notice was only for appropriation of the amounts. 7. As regards the finding that rigid PVC pipes were cleared illicitly (demand has been raised in Annexure C to the show cause notice, we find that Shri Nambiar, General Manager, had admitted to the fact of illicit removal and had debited the duty on the very next day admitting the lapse. This demand is based on three booklets 41, 42 and 43 (internal records) together with statements of the General Manager. The Commissioner has dealt with the entries in these booklets and found that they show production of PVC pipes by the appellants during the period in dispute. Annexure C has been prepared on the basis not only of these bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding of clandestine clearance cannot be sustained as there is no material on record to rebut the contention of the appellants that they did not have sufficient raw material to produce the quantity of PVC pipes alleged to have been produced and cleared illicitly by them and the electricity consumption was not so high as to enable production of such a quantity of PVC pipes stated to have been cleared illicitly, does not advance their case for the reason that not only has the Commissioner relied upon the admission of the General Manager regarding illicit production and clearance but also for the reason that details of date-wise and shift-wise production are contained in the booklets which have been relied upon by the Commissioner for comin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we find that confiscation is under Rule 173Q(1) and in the case of Bhillai Conductors the Tribunal has held that unless the confiscation is under the provisions of Rule 173Q(1)(b) of the Central Excise Rules, confiscation for mere non-accountal cannot be sustained. Confiscation of land/building/plant/machinery is also set aside. 9. Penalty on both the manufacturing units is sustainable in view of our upholding the duty demands both on shortage of inputs as well as final products and the illicit clearance of final products. However, in the totality of the facts and circumstances of the case, we reduce the penalty on M/s. Plastotex (Bombay) Pvt. Ltd. to Rs. 3,00,000/- (Rupees three lakhs) and the penalty on M/s. Omniplast (Bombay) Pvt. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
